OSHA & Hawai'i Occupational Safety
2
nd Health Law,
HRS
396, []
[and
The , a branch of the U.S.
Department of Labor, was created by the Occupational Safety and Health Act of
1970 , to provide for adoption
and enforcement of work safety and health standards throughout the United
States. The Act allowed for state-run programs which were at least as effective
as the federal program.
Since1984, federal OSHA formally relinquished its standards and enforcement
authority in areas covered by the Hawai`i program except for federal workers.
Administration and enforcement of the Law are the responsibility of the
Occupational Safety and Health Division of the State Department of Labor,
formerly known as DOSH but now referred to as HIOSH.
GENERAL DUTIES
Every employer is responsible for providing safe employment and a safe working
place for his or her employees. He or she must furnish and use safety devices
and must adopt and use safe practices. Further, an employer may not discharge,
suspend or otherwise discriminate against an employee who fails or refuses to
operate or handle unsafe equipment or who fails or refuses to engage in unsafe
practices in violation of the standards, regulations, citations or orders issued
under the authority of the law ().
An accident prevention program tailored to meet the needs of the organization
must be established. In addition, employers must keep records and post
information as provided by the Department. The HIOSH poster 'Safety and Health
Protection on the Job' must be up throughout the year, while the Annual Summary
of Occupational Injuries and Illnesses must be posted during the month of
February.
The Hawai'i Occupational Safety and Health Law sets forth in general terms the
scope and purpose of the program, the areas to be regulated, the duties, powers
and organization of the enforcing agency, and the rights and responsibilities of
employers and employees. The lengthy Administrative Rules are the detailed
provisions under which the Law is enforced. They encompass the specific
measures that employers and employees must take to avoid accidents and illnesses
and to comply with the Law.
COVERAGE
Coverage under Hawai'i's Occupational Safety and Health Law is extended to all
public and private employees, except those hired for domestic service in a
private home and those employed by a federal agency. Included in the latter
category are employees in maritime activities, who are covered by the federal
Act, and employees in atomic energy activities, who are covered by the Nuclear
Regulatory Commission.
In general, civilian employees of the federal government are covered by the
federal OSHA. Flight attendants and pilots, when they are in the aircraft, are
not covered by OSHA or HOSHL since the FAA preempts both of these statutes.
ENFORCEMENT
Employees have the right to file complaints with the Department regarding unsafe
conditions and to participate in inspections. In addition, these employees
cannot be discharged, suspended, or otherwise discriminated against for filing
complaints or for refusing to engage in unsafe practices. ()
State of Hawai'i Division of Occupational Safety & Health ():
On O`ahu call 586-9090 for Health or 586-9110 for Safety
State Dept. of Labor District Offices:
On Maui call 243-5322
On Hawai'i call 933-4391
For West Hawai'i call 322-2775
On Kaua'i call 241-3339
Hot Links to the Federal OSHA Web-sites:
Occupational Safety & Health Administration
OSHA Violation Records:
Compliance officers have the right to enter without delay any work place during
regular working hours and at other reasonable times. Places of employment are
selected for routine inspection on a worse first basis, as determined by
workers' compensation injury and illness statistics. Complaints by employees
can also initiate an investigation. Advance notice of inspection may not be
given unless expressly authorized by the Director under extraordinary
circumstances. (The compliance officer must, however, identify himself and
present his credentials to the person in charge of the establishment as soon as
he arrives at the company.)
The Department also may investigate the cause of industrial injuries resulting
in disability or death and, subsequently, issue recommendations or orders. Any
employer, owner, operator, agent or employee may be questioned privately during
investigations, inspections and enforcement activities.( &
Administrative Rules)
If an employer refuses to allow a compliance officer to enter or inspect the
place of employment, the Administrator may obtain a court warrant compelling the
employer to cooperate.
When the Department finds an unsafe condition it may issue a citation, order or
notice directing the manner, abatement period, and changes required to correct
the hazard. The employer must obey and observe all such directives and post
them in prominent places at applicable work sites within one business day of
receipt.
If the Department finds conditions which constitute an imminent hazard to the
life or safety of any person, it may apply to the circuit court for an
injunction restraining the use of the operation until such operation is made
safe.
Where a condition or practice could reasonably be expected to cause death or
serious physical harm, the Department has the right to immediately inform the
employees and employers of the hazard and to take steps to obtain immediate
abatement of the hazard by the employer.
The maximum fine for violating the state HIOSHL is $7,000; and an employer
charged with a willful or repeated violation could be fined as much as
$70,000.
HIOSHL distinguishes between four different categories of violation: serious,
willful, repeat, and general.
SAFETY DATA SHEETS
Safety Data Sheets (SDS), material safety data sheets (MSDS), or product safety data sheets (PSDS) are documents that list information relating to occupational safety and health for the use of various substances and products. SDSs are a widely used system for cataloguing information on chemicals, chemical compounds, and chemical mixtures.
Chapter 203 in Part 8 of the regulations (§12-203-7) requires chemical
manufacturers and importers to obtain or develop Material Safety Data Sheets
(MSDS -OSHA form 174) for each hazardous chemical they produce or import and
employers to have a MSDS for each chemical they use.
The SDS/MSDS must be in English and reveal all the ingredient(s), the chemical(s),
the common name(s); the physical and chemical characteristics and health hazards
including signs and symptoms of exposure, and any medical conditions which are
generally recognized as being aggravated by exposure to the chemical;
precautions for safe handling; emergency and first aid procedures.
Copies of the SDS must be readily accessible during each work shift to
employees when they are in their work areas and must be readily available, upon
request, to designated union representatives.
STANDARDS
Like the federal OSHA, over the years HIOSH has developed detailed sets of
standards that must be adhered to. Compliance with existing HIOSH standards is
required, but HIOSH may also enact temporary standards to address hazards not
otherwise covered. Temporary standards remain in effect until superseded by
standards promulgated under Chapter 91 or for a maximum of six months.()
are organized into several major parts:
Each of the Parts is subdivided into chapters. For example:
Part VIII, Health Standards, include the following chapters:
This law is dministered by the of the state's Department of
Labor and Industrial Relations.
The law requires all employers in the state to insure themselves either by purchasing a WC
policy
from a private insurance company or by qualifying for self-insurance as determined by the
Department.
The law covers all employers employing one or more persons for any part of a day. It includes
public employers and their agencies, with the exception of federal employees who are covered by
the Federal Employees
Compensation Act (FECA).
The reach of Hawaiʻi's law is substantial. An employee hired in the state while performing his/her
duties, is covered. All contracts of hire are deemed to include an agreement to this effect. An
employee hired out of state and injured in the performance of duties out of state and who is
covered for workers' compensation under the law of the state where he/she was hired, may
enforce a claim with the Director of Labor.
Workers' compensation is an exclusive remedy (). Except for injuries or emotional distress inflicted by sexual harassment, the
injured employee cannot sue the employer who provides compensation even if the employer's
negligence caused the worker's injuries. However, the injured employee retains his rights to sue
a
third party who caused his/her injuries.
The primary advantage of the Hawai'i WC law is that an employee is protected by certain
presumptions (). In the absence of
substantial evidence to the contrary it is presumed: 1) that the claim is for a covered work
injury;
2) that sufficient notice of such injury has been given; 3) that the injury was not caused by the
intoxication of the injured employee; and 4) that the injury was not caused by the willful
intention
of the injured to injure himself or another.
In 1998, however, the law was amended to bar claims for mental stress resulting solely from disciplinary action taken in good faith by the employer.
